We the People, Part I: Them the Complications

Mike Rappaport’s Feb. 7 post flagged a New York Times piece by Adam Liptak, headlined “’We the People’ Loses Appeal With People Around the World.” The article summarized a study by David S. Law and Mila Versteeg, purporting to document the waning global influence of the U.S. Constitution since the 1980s. To summarize today’s and tomorrow’s post: the authors are probably right. But the picture is a great deal more complicated than their study (let alone Liptak’s summary) suggests. Moreover, and pace Liptak’s snarky subhead (“The Constitution has seen better days”), there’s no reason to worry.

Just the Facts?

The Law/Versteeg study is relentlessly empiricist. The authors coded and analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006, and they considered 237 variables regarding rights and institutional arrangements (federalism, and presidential versus parliamentary government). After all that painstaking work, the only thing that the study demonstrates beyond peradventure is the fiendishly difficulty—even for very sophisticated, conscientious scholars—of doing empirical, large-n work in a field where every variable and parameter is endlessly contestable.

Scholars disagree as to whether Britain, New Zealand or Israel even had constitutions over the time frame, and what exactly they consist of. They disagree over what constitutes a federal system and how to distinguish presidential from semi-presidential systems. It’s a very good question whether the “constitutions” of totalitarian or authoritarian regimes should be included in a comparative study, or whether each country and constitution should be given equal weight. Decisions of this sort bear on the results. For example, mini-states are usually unitary rather than federal (for obvious reasons); they also tend to be parliamentary rather than presidential. The “declining influence” of the U.S. model in these institutional dimensions may simply be an artifact of the proliferation of small independent states. Or maybe not. Without closer study, we simply don’t know.

One might think that rights (the authors’ preoccupation) may be less ambiguous than complex institutional variables, but they really aren’t. For example, the authors’ Table 3 informs us that the U.S. Constitution does not contain a right to “freedom of movement.” Quite arguably, however, the Privileges and Immunities Clause of Article IV does guarantee that right, albeit in the form of a non-discrimination guarantee; and in any event, the Supreme Court has recognized a “right to travel” for over 130 years. Perhaps, we should count only rights that are literally in the constitutional text; but then, Table 3 says that the U.S. Constitution contains rights to “privacy” and to “freedom of expression,” which are manifestly extra-textual. Multiply judgment calls of this sort by 729 constitutions and 237 variables: it’s impossible to know whether the errors wash out or compound. All this, mind you, before we know anything about the real-world scope and enforcement of all those rights.

In fairness, the authors recognize and flag many of the difficulties, and for the most part they take care not to overstate their conclusions. Alas, on the way from academe to New York Times headline to tendentious blogosphere claptrap, the subtleties tend to get lost.

Don’t Worry

My sense, based on the literature in the field, is that Law-Versteeg are roughly right about the declining overlap between the U.S. Constitution and other countries’. However, it’s not obvious why one should view other countries’ failure to mimic our rights and institutions as a decline of American constitutionalism. (Would our Constitution have “better days” if other countries mindlessly copied our arrangements and tried to make them work in places where they can’t?) In two particular respects, moreover, “declining influence” may reflect salutary feature of American constitutionalism.

The Law-Versteeg study and Liptak (quoting justices from Israel and Australia) suggest that the U.S. Supreme Court and its jurisprudence—as distinct from the Constitution—no longer enjoy an international leadership role. This is unquestionably true. The rise of powerful constitutional courts is one of the most striking features of global democratization. The currency of the juristocracy’s realm is the coinage of ever more expansive rights, and our Court has lagged in that regard. In fact, the United States has been generally more resistant than other countries to the global trend to cede authority to bodies of doubtful democratic legitimacy—foremost, constitutional courts; but also central banks, international confabs and conventions, and stick-built bureaucracies in Brussels. It’s an interesting question why that is so, but it’s not obviously a bad thing.

Pause over the Law-Versteeg numbers (729 constitutions, 188 countries): they suggest that the average country had 3.88 constitutions over the six decades, with an average duration of 15.46 years. The actual average longevity may be closer to 19 years, and some of the churn reflects welcome waves or wavelets of democratization (e.g., after World War II, the end of colonialism, and the fall of the Soviet Empire). Still, the picture is still one of distressing constitutional and political instability. Perhaps, before we start obsessing over the mismatch between our constitutional rights catalogue and those of other countries, we should worry about the differential—and often lacking—capacity of constitutions to do what they are supposed to do: produce democratic stability over the long haul. No one should care whether Tunisia’s constitution-in-the-making will look like ours—so long as it promises to do that one crucial thing.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

Comments

The decline of American Constitutionalism around the world may reflect that governments around the world do not wish to respect the natural rights of their citizens. The U.S. Constitution is based upon an idea that foreign governments do not ascribe to, such as limitations on government powers. The idea that every citizen has unalienable rights that government shall not infringe is anathema to the personality types who aspire to power in those countries so it is unremarkable that they not interested in American Constitutionalism as any sort of model.

What is more interesting, and alarming, is that the U.S. Constitution is so much on the decline among the political class here at home. Starting with Woodrow Wilson so-called American “progressives” are no more interested in having any limitations placed upon them than are those foreign potentates. We have been treated to the spectacle of one of our Supreme Court Justices, a person who has taken an oath to support, defend and protect our Constitution, telling the gang of crooks now ruling Egypt not to look to our Constitution, but to Canada or South Africa. She needn’t worry. That crew has no intention of looking for one second at the U.S. Constitution nor Canada or South Africa or any other free country. Their only interest in any constitution at all will be either to enshrine themselves into perpetual rule or simply as window dressing masking a corrupt government, e.g., Mexico’s constitution.

Give me a break, passing haechtare reform takes away our freedoms while warrantless wiretaps did not.You people are expert in using this card:”FEAR”Spending a couple of TRILLION dollars in Iraq for a phony-baloney war based on cherry picked intel was was worth it, but spending money on healthcare oh that’s socialism.Btw, as a vet the VA hospital here in Fresno sure did get a heck of a lot better after the President Bush “cockroach and rat infested” VA hospital scandal days.Of course our ex Commander-in-Chief hired a political hack to run the VA like he did FEMA.Google,”Walter Reed Army Medical Center neglect scandal”And that Star Wars clip was about the Bush admin and it’s assault on America’s freedoms.

I appreciate your conclusion very much: “‘declining influence’ may reflect salutary feature[s] of American constitutionalism.” Liptak jumped right on the theme of the U.S. Constitution’s distinctness and rode it straight to the typical conclusion that the Constitution is irrelevant. Madison clearly recognized it was distinct at the time of its drafting and ratification, though.

The Law/Versteeg piece calls to mind recent works in human rights law – especially Michael Ignatieff and Harold Koh – who use the theme of American exceptionalism as a brickbat to beat away at the Constitution for being out-of-step with international legal norms.

The U.S. Constitution was written to limit the government, and to leave the people alone unless they harmed another. That is why one does not see our right to travel written in..it is a given. We have so many rights left to us, that there would be volumes to our Constitution if that were not the case.

My right to individualism doesn’t ipemde on your right to voluntary collectivism. But your forced collectivism ipemdes on my right to individualism. There is no such thing as forced individiaulism. That would be to say that I am forcing you to not force me do anything.

The main differences are that the Articles of Confederation did not etslbaish an executive branch and it did not create a tight union. The president was only the president of the Congress. States were more like individual countries rather than territories within a country.Their similarities are that a governing body, the Congress, was made of representatives from each of the States.Read them and compare for yourself.

, When the government supiepls a safety net against failure (corporate, personal, or otherwise), it virtually guarantees more of the same. We’ve just spent over $1 trillion in government bailouts to the financial system [and how on earth is this Pelosi’s bailout and not Paulson’s bailout?!], with promises of more to come, and we have an exploding national debt and deficit. No one is pleased with this. Yet, apparently, we are all to blame for allowing our financial markets to run amok with the concepts of liberty , freedom , laissez faire , free market and deregulation . How do you square that? Also, if not for certain social services, the poor and the elderly would be dying on our city streets. When you come down from the heights of pure ideology and rejoin the world as it is, how would you and your candidates handle the reality of hungry, homeless citizens? No one I know thinks it’s the governments job to prevent failure, [found it]~Paules, but most agree with the idea of a government committed to preventing starvation. What are your solutions? [My hippie flashback goes like this: I lived in NYC during the Reagan years when social services budgets were slashed and will never forget the homeless women relieving themselves between parked cars in broad daylight. This country can do better.]So, Orrin, when you write things like, Expanding and protecting the sovereignty of the individual necessarily depends on some sense of order… Social conservatism beleives that a pervasive culture and “peer pressure” is the best way to preserve that order without being slaves to the state. (Where religious people seek to use the power of the state to impose, such as BHO forcing us all to be our brothers’ keepers, that is NOT conservative.) – it leaves me wondering where assistance will come from for those who choose to live outside the horrors of peer pressure and the religious or state imposition of slavery. As discussed in a previous post, charity will never cure poverty. Again, what are your solutions? Find a cure for poverty without imposing some version of family values and you’ve got my vote. Note #1: if you think this isn’t your issue , think again – 1.2 million Americans just lost their jobs. Note #2: wait at least two generations before dragging out that trickle down theory again our memories are long.Here’s what will never work: the sniping, snide, outpourings of revulsion for Barack Obama. Not just because it smacks of absurd Rovian ugliness (Liddy Dole’s ad choice) at a time when we’re all looking for calm inspiration and intelligence. But those of us who voted for him (52%) don’t understand what you think he represents in fact, I wonder if you’ve taken the time to spell it for out yourselves in any detail. See if you can get specific about what you stand for without taking gratuitous swipes at those who may or may not be in your way.The notion of hope is a powerful motivator in an electorate. You might investigate what causes hope in Americans now that over half of us voted for the untested socialist , the hippy law prof , and then spent last Tuesday night in an orgy of thankfulness and hope. Kudos to Daddyquatro for the original post.

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